Chapter Seven - Faxing Problems Continue

The COT stories are real-life crime dramas conducted by unscrupulous and evil government bureaucrats whose sole aim is to destroy the credibility of any claimant who entered the government endorsed arbitrations. Heinous, scandalous vile and mischievous crimes were committed by those who controlled the arbitrations

29th June 1998:  William Hunt writes to Alan about lost faxes:-

“There are enclosed six sheets of paper which are the material received by fax from you this morning. I have numbered each of the pages at the bottom in ink and signed my name on the two blank pages.”

“There is a seventh separate page which is read-out from our fax machine as at quarter to three this afternoon.” (AS CAV Exhibit 234 to 281 - See AS-CAV 249 and AS-CAV 250)

COMMENTARY

Exhibit AS CAV Exhibit 234 to 281 - See AS-CAV 250 includes Telstra FOI document K01489, dated 29th October 1993:

“During testing the Mitsubishi fax machine, some alarming patterns of behaviour were noted, these affecting both transmission and reception. Even on calls that were not tampered with the fax machine displayed signs of locking up and behaving in a manner not in accordance with the relevant CCITT Group 3 fax rules. A half A4 page being transmitted from this machine resulted in a blank piece of paper 4cm long, the relevant protocol printout in sample #2 shows that the machine sent the correct protocol at the end of the page. Even if the page was sent upside down the time and date and company name should have still appeared on the top of the page, it wasn’t.

Please consider the following examples:

• Exhibit AS CAV Exhibit 234 to 281 - See AS 253 dated 24th July, 1998 confirms Chrissy Hawker recorded her experience of receiving similar half pages, including blank pages while working for Alan during 1998.
• Exhibit AS CAV Exhibit 234 to 281 - See AS 254 dated 24th July, 1998 confirms Ronda Fienberg likewise recorded similar experiences when receiving faxes from Alan’s office between August 1994 and July 1998.
• Exhibit AS CAV Exhibit 234 to 281 - See AS 255 dated 25th July, 1998 confirms Robert Palmer recorded experiencing similar transmission problems (over a two year period) when receiving faxes from Alan’s office.
• Exhibit AS CAV Exhibit 234 to 281 - See AS 270 dated 30th January, 2000 confirms Margaret Van Run, recorded experiencing fax problems while working over the Christmas period of 1999.
• Exhibit AS CAV Exhibit 234 to 281 - See AS 250 dated 21st January, 2003 confirms Darren and Jenny Lewis (the new owners of Alan’s business) wrote to David Hawker MP concerning their experiences when sending faxes.
• Exhibit AS CAV Exhibit 234 to 281 - See AS 250 dated 23rd January, 2003 confirms Mr and Mrs Lewis raised their faxing complaints with John Pinnock, TIO.
• Exhibit AS CAV Exhibit 234 to 281 - See AS 250 dated 29th January, 2003 from Senator Alston’s office to David Hawker MP, states:-

“Thank you for your representations of 20 January 2003 on behalf of Mr Darren Lewis concerning Telstra services.

The issues raised in your letter are receiving attention and the Minister will respond to you shortly.

Graham and Alan believe their telephone calls and facsimiles were intercepted during their respective arbitrations, and during the Senate Working Party investigations. Consider the fax identification footprints in (GS-CAV Exhibit 324 to 367 - See GS CAV 365).

Exhibit GS-CAV Exhibit 324 to 367 - See GS CAV 367 is a four-page document detailing the information on file showing someone with access to Telstra’s network was intercepting Telstra-related correspondence leaving Alan Smith’s office and his residence, via his facsimile service, from 1998 to 2002

30th June, 1998:  John Pinnock writes to Graham:

“It is unfortunate that the tape recording of our meeting on 22 May 1998 failed. I do not agree that the draft of the notes of the meeting do not record all key words used. However, that is a matter of opinion.”

“While I believe that the notes fully record the essential points of the meeting, it seems to me that the parties will have to add their own addenda to the minutes in respect of any aspect with which they disagree. …”

“I do not propose to refer this matter back to the Australian Communications Authority. …”

“While I assume that the document entitled ‘Telstra Corporation – Fast Track Proposed Rules of Arbitration’ which you provided to Mr Bartlett on 22 May 1998 is a copy of the document provided to Warwick Smith on or before 12 January 1994, I cannot be certain it is.” (GS-CAV Exhibit 368-a to 409)

COMMENTARY

Exhibit GS 144, in Graham’s Chronology part 1, is a letter dated 18th January, 1994 from Dr Hughes, to Graham:-

“I have been provided by the TIO with a document entitled ‘Telstra Corporation Limited – “Fast Track” Proposed Rules of Arbitration’. I have not yet formed a view as to the suitability of this proposal.”

Exhibit GS-CAV Exhibit 324 to 367 - See GS CAV 343  contains a letter from John Pinnock to Dr Hughes, dated 22nd April, 1998 which notes:-

“The TIO proposes to appoint a new arbitrator as soon as possible. Until such an appointment is made. [sic] I consider that it would be appropriate for the TIO, as administrator, to hold for safe keeping all documents and correspondence submitted to you, as well as your own files, in relation to this Arbitration

Question 1

If Mr Pinnock couldn’t be certain the document Graham provided to Mr Bartlett was a mirrored copy of Telstra’s ‘Fast Track’ Proposed Rules of Arbitration, why didn’t he check the arbitration files supplied back to him by Dr Hughes?

Any forensic document researcher would agree if comparing both the final Arbitration Agreement we signed and the agreement Telstra sent to the TIO, that the Arbitration Agreement used in the arbitration process was based on Telstra’s rules and not on an independent agreement.

Exhibit GS 318-b, in Graham’s Chronology part 1, is a letter from John Pinnock to Ms Pauline Moore, Secretary Senate Environment, Recreation, Communications, and the Arts Legislation Committee, noting:-

“Yes, I have refused to provide COT members with a copy of Telstra’s Proposed Rules of Arbitration.  A copy of this document was not provided because it was of historical interest only, and the COT members did not advance any arguments as to why it was relevant to their arbitration. A copy is provided for the information of the committee.”

Question 2

Does this suggest the copy of Telstra’s Proposed Rules of Arbitration, provided by Mr Pinnock to the Senate, might not be a true and correct copy of the one supplied to the Arbitrator 18th January, 1994? 

8th July 1998:  Graham discusses his previous phone call, of Monday, 6 July 1998, with Telstra’s Neil Mounsher:-

“I am confirming in writing I did not terminate the Telstra-GOLDEN 3-Part Agreement which Telstra initiated, nor did I imply I was going to terminate the agreement. …”

“The outcome of the proposed meeting between Telstra and GOLDEN, tentatively scheduled to take place on Friday, 19 July 1998, may result in Telstra re-committing to participate in Part 2 and Part 3 of the agreement between the parties.”

“I await advice as to whether the proposed Friday, 10 July 1998 meeting will take place.” (GS-CAV Exhibit 368-a to 409 - See GS CAV 369)

Please note

During July and August 1998, Graham was heavily involved in preparing a Confidentiality Agreement for the Senate Working Party, so commercial sensitive Telstra documents uncovered by Graham, Ann Garms, Ralph Bova, Ross Plowman and Anthony Honner would remain confidential to their claims.  This agreement was seen to be fair, considering the five COT cases were only the litmus tests for the remaining 16 and the other claimants would have similar opportunities for accessing their required previous-non supplied FOI documents

However, at the disgust of many, including the Commonwealth Ombudsman’s Office, Senator Richard Alston, Minister for Communications, Information, Technology and the Arts, went back on the Schedule B list agreed terms of reference.  The remaining 16 were never afforded the opportunity to view at least some of the relevant information previously withheld from them by Telstra and which might provide them the opportunity to successfully win an appeal process.

Graham was saddened by Senator Alston’s about-turn decision: after all, the whole COT group had suffered at the hands of Telstra and their sympathisers.

16th July, 1998:  Wally Rothwell writes to Alan:- 

“I further outlined your concerns about fax pages which you considered did not reach the arbitrator, during your arbitration, and the mysterious blank pages.  …”

“With regard to the 1800 and Gold Phone matters, I have received information from Mr Bartlett and have asked Dr Hughes about his consideration of the matters during arbitration.” (AS CAV Exhibit 234 to 281 - See AS-CAV 251)

Alan has never seen this “received information from Mr Bartlett”.

22nd July, 1998:  Telstra’s John Armstrong writes to Graham.  While the Senate Working Party process has been kept separate from this Chronology, it is important this letter is highlighted, as the content is relevant to Alan Smith’s arbitration process as well.

Under the heading, National Network Management Centre Logbooks, Mr Armstrong states:-

“Also provided in addition to the above, is an example of a National Network Management Centre (NMC) Logbook. The NMC is responsible for monitoring traffic levels and blockages within the Telstra network and taking action to limit or redirect traffic as necessary. … The logbooks listed in the attached table are the record of events controlled or monitored by the NMC from 20 July 1984 to 4 June 1998.”
(GS-CAV Exhibit 368-a to 409 - See GS CAV 370)

24th July, 1998:  Alan writes to Wally Rothwell re lost faxes during his arbitration: 

“Another chronological list of faxes which have been lost in transit to Dr Hughes is enclosed. …” 

“The pieces of the puzzle are beginning to fit together now that it appears that neither the Arbitrator or the resource team actually saw all the claim documents I believed I had submitted and which I intended Telstra to address in their defence of my claims.” (AS CAV Exhibit 234 to 281 - See AS-CAV 252)

25th August, 1998:  Mr Pinnock writes to Alan noting:-

“The only issues that I am considering, as the former Administrator of your arbitration, are the alleged overcharging for your 1800 service and matters pertaining to your Gold Phone service, and whether they were considered in the final award.” (AS CAV Exhibit 234 to 281 - See AS-CAV 257)

1st September, 1998:  Graham’s letter to Mr Pinnock again criticises the TIO and Peter Bartlett’s office for their failing to correctly address the misleading and deceptive conduct of Graham and Alan knowingly being misinformed by the TIO and Dr Hughes, concerning the Fast Track Arbitration Rules being drafted by Minter Ellison, when Telstra’s own lawyers drafted the agreement.

The evidence, shown in Graham’s Chronology part 1, confirms someone with access to Minter Ellison’s office altered the Arbitration Agreement, without notifying Graham or Alan, after copies of the agreement were provided to their legal advisors, William Hunt and Alan Goldberg, for advice. (See Graham Schorer Exhibit 2, Relevant Information file.)

16th October, 1998:  The Hon David Hawker, MP, writes to Mr Pinnock:-

“I would appreciate your assistance in resolving Mr Smith’s complaint.

I look forward to receiving your advice in due course.” (AS CAV Exhibit 234 to 281 - See AS-CAV 258)

Exhibit AS CAV Exhibit 234 to 281 - See AS-CAV 262 confirms Mr Pinnock is still investigating the billing issues in February 1999, even though he knew these issues were not addressed in Alan’s arbitration.

19th October, 1998:  Ted Benjamin submits his sworn Affidavit to the Court (on behalf of Telstra) in the Matter of an Arbitration under the Commercial Arbitration Act, between Telstra Corporation Limited and Graham Schorer

It is important to point out some discrepancies in this affidavit i.e.

Point 4:  “The FTAP was prepared after Dr Hughes advised the parties that his functions could most be effectively be discharged if he was appointed as Arbitrator rather than assessor,” is incorrect because:-

• Dr Hughes did not make that statement until the FTAP meeting attended by Graham on 17th February, 1994 see Graham’s Chronology part 1 exhibit (GS 165); and
• Telstra faxed Warwick Smith a copy of their Telstra Proposed Rules of Arbitration on the 10th January, 1994

Point 20:  “On 12 May 1995 the Arbitrator indicated to the Claimants that he had not heard from them for some time and that he would be convening a directions hearing in order to determine whether the parties wished the arbitration to proceed,” is misleading as is the letter itself because:

on 12th May, 1995 Dr Hughes also wrote to Warwick Smith without copying the same to Graham noting: “In summary, it is my view that if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the Arbitration Agreement.” (GS 217)

Why didn’t Mr Benjamin state in his Affidavit that the Arbitration Agreement was not credible, or wasn’t he aware?

If Mr Benjamin wasn’t aware, as a sitting TIO Council member, does this mean the TIO Board and Council are also unaware their officers were administering the COT arbitrations on an agreement that Dr Hughes damned “not credible” on 12th May, 1995?  Did Mr Pinnock keep Dr Hughes’ letter to himself?

Point 42:  “On 14 August 1997 the Arbitrator made directions in relation to the involvement of Mr Paul Howell of DMR Group Australia Pty Ltd, in accordance with Clause 8.1 of the FTAP.”

This statement is incorrect as Paul Howell was commissioned in Canada, during March 1995, from DMR Group Canada Pty Ltd.
DMR Group Australia Pty Ltd was sacked from the FTAP, in February/March 1995, because it had a conflict of interest.

Point 48: “On 22 May 1998, I attended a further meeting at the TIO. Mr Schorer and his solicitor were also present. Again, the purpose of the meeting was to attempt to progress the arbitration by appointing a new arbitrator.”

Remember, the 22nd May, 1998 Minutes referred to were originally compiled from handwritten notes prepared by Ms Lucy McCullagh of Minter Ellison.  Graham was advised Minter Ellison’s tape-recording equipment apparently failed to record the meeting.  John Pinnock and Ted Benjamin accepted these Minutes as a true and correct account of the meeting and Graham’s interpretation of events were irrelevant. (GS 358)

IMPORTANT COMMENTARY

Alan Smith has maintained, during, and for years after his arbitration, the problems and faults raised in his claim continued until he and his partner Cathy were forced to sell their business, because Telstra and the TIO would not investigate their valid claims.

The importance of exhibit GS-CAV Exhibit 368-a to 409 - See GS CAV 370 is that, with the attachments, it shows that, if the Senate had not been involved in the COT FOI investigation, Graham would not have received this relevant log-book information.

Exhibit GS-CAV Exhibit 368-a to 409 - See GS CAV 371 is John Wynack’s letter, dated 11th November, 1994 to Telstra’s CEO Frank Blount, noting:-

“At the request of Ms Geary, I am notifying you of the details of the complaints made to the Ombudsman by Alan Smith.”

On page 2, it is noted for the date 7/11/94:-

“Telecom unreasonably refused to provide the ‘Portland/Cape Bridgewater Log Book associated with the RCM at Cape Bridgewater’ for the period 2 June 1993 to 6 March 1994.”

Alan Smith wanted this logbook to show Dr Hughes, Arbitrator, that the Cape Bridgewater exchange trunked off the Portland AXE, was still suffering with phone problems, even though the Bell Canada International (BCI) tests stated otherwise.

Exhibit GS-CAV Exhibit 368-a to 409 - See GS CAV 372 is a sworn Statement by Des Direen, an ex-Telstra Protective Services Officer, dated 10th August, 2006 confirming at points 20, 21 and 22 that:-

“20. …I had cause to travel to Portland in western Victoria in relation to a complaint involving suspected illegal interference to telephone lines at the Portland telephone exchange.” 

“21. As part of my investigation, I first attended at the exchange to speak to staff and check the exchange log book which was a record of all visitors to the exchange and a record of work conducted by the technical officers.”

“22. When I attended at the exchange, I found that the log book was missing and could not be located. I was informed at the time by the local staff that a customer from the Cape Bridgewater area south of Portland was also complaining about his phone service and that the log book could have been removed as part of that investigation.”

Alan Smith has never been provided the Portland/Cape Bridgewater Log Book.  By Telstra withholding this vital information from Alan, he was stopped from using up-to-date documentation that would assist him to show the arbitrator the problems and faults were still ongoing

Arbitration v Senate Working Party, which way should Graham go

From August to the end of 1998, John Pinnock was still hiding the fact that the TIO-administered arbitrations failed to provide most of the claimants the information to support the true extent of their phone problems and faults.  During the same period, very little was being achieved through the TIO Office in regards to Graham’s arbitration matters.  Graham was now working extensively with Telstra via the Senate Working Party (hence very little correspondence worth noting).

COMMENT 1 

Exhibits GS-CAV Exhibit 368-a to 409 - See GS CAV 375 and GS CAV 376 confirm Paul Howell, was from DMR (Canada) and Warwick Smith was using DMR Group (Canada) in September 1994.

Exhibit GS-CAV Exhibit 368-a to 409 - See GS CAV 376 is a letter from Warwick Smith to Alan Smith, dated 9th March,1995:-

“As the executive of DMR Group Australia Pty Ltd is unavailable to provide locally based technical assistance, I propose to utilise the services of Mr David Read and Mr Chris Soutter of Lane Telecommunications (based in Adelaide) who are suitable qualified and independent.”

“Messrs Read and Souter will assist Mr Paul Howell of DMR Group Inc (Canada)…”

Exhibit GS-CAV Exhibit 368-a to 409 - See GS CAV 377 is a letter from Warwick Smith to Mr and Mrs Main, dated 27th September, 1994:-

“I am yet to formally appoint an Arbitrator to be involved to hear any cases… However, already established is a Resource Unit made up of a representative of the senior accounting firm Ferrier Hodgson and DMR Group, who are Canadian communication experts.”

COMMENT 2

In 2001, under the TIO Privacy Policy Act, Alan received a document dated 18th April, 1995 from John Rundell of FHCA to Warwick Smith.  This document advised:-

“Paul Howell, Director of DMR Inc Canada arrived in Australia on 13 April 1995 and worked over the Easter Holiday period, particularly on the Smith claim. Any technical report prepared in draft by Lanes will be signed off and appear on the letterhead of DMR Inc.” (AS-CAV Exhibit 128 to 180 - See AS-CAV 160) 

The following points explain the relevance of this letter:

• DMR (Australia) signed an agreement with TIO Warwick Smith, in April 1994, (as stated in the Arbitration Agreement) to act as the independent Arbitration Technical Resource Unit.
• On March 9 1995, Warwick Smith advised Alan DMR Australia was unavailable to provide locally based technical assistance. Paul Howell of DMR (Canada) was to be appointed as the principal technical advisor to the resource unit and Lane (based in Adelaide) would assist Mr Howell:-“Could you please confirm with me in writing that you have no objection to this appointment so the matter can proceed forthwith”. (GS-CAV Exhibit 368-a to 409 - See GS CAV 376)
• In his letter, Mr Rundell confirms he was prepared to transfer Lane’s technical findings onto the letterhead of DMR (Canada) as a guise that Paul Howell prepared the final Report. (AS-CAV Exhibit 128 to 180 - See AS-CAV 160)
• Document AS-CAV Exhibit 128 to 180 - See AS-CAV 162 confirms Paul Howell, on 21st March, 1995 only received 3 of Alan’s 22 submitted claim documents, along with Telstra’s defence.
• Document AS-CAV Exhibit 128 to 180 - See AS-CAV 163 confirms FHCA advised Mr Howell, on 5th April, 1995 that David Read (of Lane) would have his draft Technical Report prepared by 7th April, 1995.
• Dr Hughes’ draft Award, on page 3 at (i) and (j), states:-

“pursuant to paragraph 8 of the arbitration agreement, I had power to require a ‘Resource Unit’, comprising Ferrier Hodgson, Charted Accountants, and DMR Group Australia Pty Ltd, to conduct such inquiries or research as I saw fit;”

“On 21 February 1995, by the time I was satisfied that the submission of all relevant material by both parties was complete, I instructed Ferrier Hodgson (and, through them DMR) to conduct certain inquiries on my behalf;” (AS-CAV Exhibit 128 to 180 - See AS-CAV 165)

• Dr Hughes’ final Award states, on pages 3 and 4 at (i) and (j):- 

“pursuant to paragraph 8 of the arbitration agreement, I had power to require a ‘Resource Unit’ comprising Ferrier Hodgson, Charted Accountants, and DMR Group Australia Pty Ltd, to conduct such inquiries or research as I saw fit. By consent of the parties, the role of DMR Group Australia Pty Ltd was subsequently performed jointly by DMR Group Inc and Lane Telecommunications Pty Ltd;”

“On 21 February 1995, by which time I was satisfied that the submission of all relevant material by both parties was complete, I instructed the Resource Unit to conduct certain inquiries on my behalf;” (AS-CAV Exhibit 128 to 180 - See AS-CAV 165)

Summary of Documents (AS-CAV Exhibit 128 to 180 - See AS-CAV 160 to 165):-:

1. Paul Howell didn’t receive any of the technical claim and defence material until 21st March 1995.
2. Paul Howell and David Read weren’t officially appointed by the TIO until 9th March 1995 and/or officially accepted by Letter of Consent.

All the technical findings, in both the draft and final Awards (except for the removal of the alleged liquid-spillage segment), are the same.  However, in the draft Award, the author states he called on DMR Group Australia Pty Ltd by 21st February, 1995 to conduct inquiries.  As DMR (Canada) was not appointed until 9th March, 1995, and didn’t receive the Technical Claim and Defence Material until 21st March, 1995 (see AS 162), how could the technical findings in the final Award have been prepared by DMR (Canada) when the technical findings in both awards are the same?

QUESTIONS: 

Is there a link between DMR Group (Australia), Lane Telecommunications and Dr Hughes, all having a conflict of interest (after their appointments), to Graham’s arbitration?
Why did it take Warwick Smith from September 1994 to March 1995 to inform Graham and Alan that DMR (Canada) would be appointed as their Technical Resource Unit?

Exhibit EJB1 is the Fast Track Arbitration Procedure (agreement) signed by Graham 21st April, 1994.  However, as has now been proven, this agreement was not the one Dr Hughes’ office faxed to Graham’s legal advisors, William Hunt and Alan Goldberg, for their attention and advice.  There is no correspondence showing Graham or Alan were notified of these alterations before they signed the agreement.

While not yet substantiated, it appears Telstra knew of these alterations either before, or during, Graham and Alan’s arbitrations.

In the Supreme Court of Victoria Court of Appeal, a judgement was handed down by Judges P Winneke, P Phillips and J Kenny, on 30th April, 1998 which notes p4:-

CATCHWORDS:

Unilateral mistake – Claim for rectification – Deletion of material provision – Solicitors acting – Mistake by solicitor – Actual knowledge of other party – Failure of other party to bring mistake to mistaken party’s attention [our emphasis] – Assessment of witnesses by trial judge – whether findings of trial judge justified order for rectification. …

“Of course the respondents faced considerable difficulties in their claim for rectification, not the least being that clause 10.9 had been deleted by their own solicitors; it was not something sought or even suggested by the appellants. Moreover, there were subsequent negotiations over clause 2(1)(f) which might have been expected to draw the respondents’ attention to the mistake over clause 10.9, if such it was; secondly, the relevant board, acting for the respondents, authorised the execution of the shareholders’ agreement and indeed the other agreements, in the form in which they were finally settled by the respondents’ solicitors and those solicitors were certainly not unaware of the deletion of clause 10.9…”

“In a careful and comprehensive judgement, the trial judge examined the evidence, such as it was, and resolved all of the issues of fact were necessarily involved in the respondents’ suit, Thus he found that the inclusion of a right of pre-emption such as that accorded by clause 10.9 was of fundamental importance to the agreement.”
(GS-CAV Exhibit 368-a to 409 - See GS CAV 379 t)

COMMENT:

Mr Benjamin’s Affidavit, for Justice Gillard, does not include any of the following:-

1. A Commonwealth Ombudsman’s investigation, which showed Telstra’s administration of Graham’s FOI releases, during Graham’s arbitration, was defective.
2. A Senate enquiry, on 6th and 9th July 1998 which:-
   • 1.examined Telstra’s defective supply of relevant information to Graham during his arbitration, and
   • 2.asked why Telstra was still not providing the documents the Senate Working Party requested.
3. The Senate’s expressed anger that, as late as July 1998, Telstra showed disdain to the arbitration process by not supplying the relevant documents needed by the claimants.
4. The Senate’s criticism that Telstra was also showing disdain to the Parliament.
5. Mr Benjamin’s attendance as a witness at the Senate enquiry at point 2.

QUESTIONS: 

1. Even if Justice Gillard appointed a new arbitrator, what chance did Graham have of ever receiving the relevant documents needed to support his claim when, as late as July 1998, the Australian Parliament couldn’t get Telstra to supply the most relevant documents to the claimants?
2. Why didn’t Ted Benjamin include, in his Affidavit, the truth of the situation in July 1998, when Senator Schacht attacked a number of statements made by Ted Benjamin?

P 31 & 32 – Senator Schacht attacks a number of statements made by Ted Benjamin:

Senator SCHACHT – One of the 16 complained they were starved into submission, but that is another point:

Senator BOSWELL – “…To make a statement like that –

CHAIR – Senator Boswell.

Senator BOSWELL – “…No, I am sorry, Madam Chair, but this is just outrageous. You are abusing the privileges of this parliament when you make those statements. You drove them out. You drove them into submission and you drove them into starvation. How you can have the audacity to come before this parliament and blatantly say that? You are really a disgrace, the whole lot of you.” 

CHAIR – “Senator Boswell, will you withdraw that?”

Senator BOSWELL – “…Madam, I withdraw that, but I do say this: this has got a unity ticket going right through this parliament. This has united every person in this parliament – something that no – one else has ever had the ability to do – and Telstra have done it magnificently. They have got the Labor Party, they have got the National Party, they have got the Liberal Party, they have got the Democrats and they have got the Greens – all united in a singular distrust of Telstra. You have achieved a miracle.”

CHAIR – “…I just remind you, Senator Eggleston, that it is an in camera hearing of the committee. I would view seriously any information going out of this committee room – so seriously that I would pursue it to the end.” 

Please note: Graham asked Justice Gillard if the Court could wait until after the Senate investigation before appointing a new arbitrator, but Justice Gillard refused to wait and appointed an arbitrator, unaware of the existence of the Senate Hansard in-camera records.  At this point, Graham and the other claimants had long given up on any hope of having their claims independently assessed and this is why Graham was looking seriously at the minimal financial lifeline Telstra was then offering.

4th November 1998:  Wally Rothwell writes to Mr Peter Bartlett, noting:-

“In light of Dr Hughes’ response, the Ombudsman has asked to seek your advice as to whether you would therefore be of the opinion that both matters were, for all intents and purposes, addressed in the arbitration.” (AS CAV Exhibit 234 to 281 - See AS-CAV 259)

Remember, on 28th April 1995 Peter Bartlett drafted a letter to TIO Warwick Smith (see separate list re W. Smith CAV Target), pressuring Warwick Smith to write to Dr Hughes, before he left for a two-week trip to Greece, noting that:-

“It would be unacceptable to contemplate the delivery of the Award being delayed until after your return.”

Further, on 30th April 1995 DMR and Lane presented the draft of their Arbitration Technical Report to Dr Hughes, noting the report was still incomplete and stating they needed extra weeks to investigate the billing faults raised in Alan’s claim.  The extra weeks needed to complete this report were denied, even though Alan’s billing claim documents confirmed the phone problems were still occurring. The draft of the Technical Report was then altered and Dr Hughes presented it as the final and complete Report, still dated 30th April 1995.

5th November 1998:  Graham writes to Mr Neil Jepson (now deceased) Barrister and Solicitor, Major Fraud Group, Victoria Police:-

“In following up on the outcome of my Monday, 12 October 1998 interview… The supply of these documents may assist the Victorian Police Major Fraud Group’s investigation.”

“Enclosed is a Draft copy of letters I will be sending to other C.o.T. members. As you will note, the letter seeks supply of Telstra and others’ documents in their possession, which should be included in these files I am providing to you.” (GS-CAV Exhibit 368-a to 409 - See GS CAV 380)

Exhibit GS-CAV Exhibit 368-a to 409 - See GS CAV 381 is a sworn Statement by an ex-police officer, Robert Hynninen.  Although dated 8th August 2006 is most relevant to the Major Fraud Group investigation.  Mr Hynninen  was also in attendance when Des Direen made a similar statement (GS-CAV Exhibit 368-a to 409 - See GS CAV 372), regarding the parties associated with the COT case – Major Fraud Group investigations being under surveillance, including the interception of their telephone conversations.

11th November 1998:  Ms Southwell, of the Communications Minister’s office, writes to Mr Pinnock:-

“Could you also please advise on a likely time-frame for finalising Mr Smith’s claim of overcharging on his 1800 number.

“A meeting has been proposed between Mr Smith and Senator Ian Campbell and your response will form the basis for the proposed meeting.” (AS CAV Exhibit 234 to 281 - See AS-CAV 260)

29th January 1999:  Mr Dunstone, of the Communications Minister’s Office, writes to Mr Pinnock:-

“I would be grateful if you could advise the status of the TIO’s investigation into Mr Smith’s claim of overcharging – I understand this matter has been before the TIO for some years.” (AS CAV Exhibit 234 to 281 - See AS-CAV 261)

10th February 1999: Mr Pinnock writes to The Hon David Hawker, MP, in response to a letter from Mr Hawker on 11th December 1998:-

“The only matter outstanding which the TIO is considering is whether the Arbitrator considered Mr Smith’s claim for overcharging on his then 008 service when he made his Award.” (AS CAV Exhibit 234 to 281 - See AS-CAV 262)

This confirms Mr Pinnock still hadn’t told Mr Hawker the TIO-appointed Arbitration Resource Unit admitted NONE of Alan’s billing claim documents was ever investigated and/or addressed during his arbitration.  It also confirms that, although Mr Pinnock appears to have received advice from both Dr Hughes and Peter Bartlett on these very same issues, at this time he was still considering the matters.

COMMENTARY:

John Rundell’s letter, dated 15th November 1995 to Mr Pinnock supports the Resource Unit’s admission that the billing faults were not addressed.  Mr Rundell states the arbitration did not allow enough time for a full investigation.  This letter also states, incorrectly, that Alan did not raise the billing faults until April 1995, while transcripts from Alan’s Oral Hearing (AS 105) and letters between AUSTEL and Telstra (AS-CAV Exhibit 92 to 127 - See AS-CAV 126) confirm otherwise.

Dr Hughes referred to the lack of time allowed in the Arbitration Agreement in his letter to Warwick Smith, dated 12th May:-

“the time frames set in the original Arbitration Agreement were, with the benefit of hindsight, optimistic;”

“in particular, we did not allow sufficient time in the Arbitration Agreement for inevitable delays associated with the production of documents, obtaining further particulars and the preparation of Technical reports;” (AS-CAV Exhibit 128 to 180 - See AS-CAV 180)

This was the same poor time frame Dr Hughes and Minter Ellison supposedly drafted into the Arbitration Agreement in the first place.  The same inadequate timeframe stopped DMR and Lane from getting the extra weeks they needed to properly investigate the continuing billing problems so that Telstra could address them before Dr Hughes handed down his award.  Poor presentation of Alan’s claim was not what caused his business to continue to suffer after the arbitration: it was the bad decisions of Dr Hughes and Minter Ellison when they drafted the agreement and the “forces at work” that were “collectively beyond the reasonable control” of the TIO-appointed Resource Unit.

10th February 1999:  Mr Pinnock misleads, again, regarding Alan’s continuing billing complaints when he replies to Mr Mark Dunstone.

“Mr Smith, however, raised issues in 1998 which I considered merited investigation, viz. whether the Arbitrator had, in his Award, dealt with Mr Smith’s claim that he had been overcharged on his 008 (now 1800) telephone service as well as complaints concerning his fax line. The TIO has carried out some preliminary, if protracted, investigation of the former claim…” (AS CAV Exhibit 234 to 281 - See AS-CAV 263) 

Mr Pinnock discussed these same billing issues with AUSTEL, on 3rd October 1995 and with FHCA’s John Rundell, on 15th November 1995.  Why did Mr Pinnock state Alan only raised the billing issues in 1998?

16th February 1999:  The late Neil Jepson writes to Julian Burnside QC:-

“I have been requested to write to you in your capacity as the arbitrator in the dispute between Telstra and Mr Graham Schorer.”

“The Victorian Police Major Fraud Group has received a number of complaints from persons, collectively known as the COT people, including a complaint from Mr Schorer. These complaints relate to the conduct of Telstra in connection with its defence of the claims the subject of the arbitration.”

“These complaints are currently being assessed to ascertain if any criminal offences have been committed and if it is established that such offences have been committed the complaints will be fully investigated with a view of bringing criminal prosecutions.” (GS-CAV Exhibit 368-a to 409 - See GS CAV 382)

On page 2 of a Report entitled Facsimile Interception, Alan notes:-

“There were two occasions, during the Major Fraud Group’s investigation of the Telstra/Cot issues, when documents faxed to Neil Jepson’s office never arrived.” (GS-CAV Exhibit 368-a to 409 - See GS CAV 367)

22nd February 1999:  Graham writes to Mr Tony Shaw, ACA (formerly AUSTEL) Chair:-

“After the release of the AUSTEL C.o.T. Cases Report in April 1994, AUSTEL declared it was a C.o.T free zone and unilaterally refused to investigate any C.o.T. complaint about Telstra’s network performance and corporate conduct. The complaints being referred to AUSTEL were part of its legislative charter and within its jurisdiction. …”

“We formally request a meeting with you in Melbourne to present material to support the validity of our previous assertions made to and not addressed to AUSTEL/ACA. Monday, 1 March 1999 is our preferred option for the date of the meeting.” (GS-CAV Exhibit 368-a to 409 - See GS CAV 383)

24th February 1999:  Graham again writes to Tony Shaw, seeking confirmation regarding the 1st March 1999 Meeting and noting:-

“Mr Cliff Matherson [sic] has made contact to suggest a meeting date of 3rd or 4th of March 1999.” (GS-CAV Exhibit 368-a to 409 - See GS CAV 384)

25th February 1999:  AUSTEL’s Cliff Mathieson, replies to Graham’s letter of 24th February 1999:-

“No referrals regarding systemic network problems and faults have been received. However, in 1995/96 the TIO raised with AUSTEL matters relating to deficiencies in Telstra’s handling of fault reporting and recording processes. …”

“In reference to your request for a meeting, relevant ACA staff are not available 1 March 1999. Given that we have brought you up to date regarding the matters raised in your letter, there seems little point in proceeding with a meeting as requested.”
(GS-CAV Exhibit 368-a to 409 - See GS CAV 385)

Cliff Mathieson, on 21st March 1995 during the Canberra Senate Telecommunications (Interception) Amendment Bill 1994 debate, informed Alan Smith, in front of AUSTEL’s Frances Wood, the BCI Cape Bridgewater tests could not have been performed as detailed in the report (GS-CAV Exhibit 368-a to 409 - See GS CAV 385).  However, Mr Mathieson failed in his duty of care as an Official Representative of the Communications Regulator, as he should have told the TIO and Dr Hughes the BCI tests were more than just flawed, before Dr Hughes handed down his award in Alan’s case, but he did not.

26th February 1999:  Alan Smith’s fax account (GS-CAV Exhibit 368-a to 409 - See GS CAV 386) confirms he faxes three separate documents to Graham’s office (at 10:55 am, 11:20 am and 01:37 pm).  Graham’s facsimile journal for this date confirms there was no 11:20 pm document received by Graham. (GS-CAV Exhibit 368-a to 409 - See GS CAV 387)

The Graham Schorer and Alan Smith facsimile interception files (see exhibits 2 and 3), confirm faxing problems between Graham’s & Alan’s offices were nothing new. These files confirm sensitive legal (client to the solicitor) Telstra-related documents were intercepted prior to being forwarded on by Telstra to the intended destination.

26th February 1999:  Alan Smith writes to the co-ordinator of the Public Interest Law Clearing House, on the advice of John Phillips, Chief Justice of the Supreme Court of Victoria noting:-

“Back in August 1992, Austel, the Telecommunication Regulator, became involved, and Freedom of Information (FOI) documents show that Amanda Davis, then the General Manager for Consumer Affairs at Austel, also suffered from incorrect charging when making contact with my business. This continuing fault had existed on my phone line from 1988/89 and so, in December 1992, I had Telstra connect another service to handle a 1800 freecall number, in the hope that it would give prospective customers easier access to my business. …”

“There are documents in the draft of my book which show that Telstra wrote to Austel on 11/11/94 stating that they would address this incorrect charging in their defence of my arbitration claims but this never happened. …”

“What is more, Telstra also wrote to the arbitrator on 16/12/94, confirming that they had informed Austel that they would address the incorrect charging in the defence of my arbitration claim…”

“…the incorrect charging to my 1800 account continued right through my arbitration and for at least a further 20 months after the ‘completion’ on my arbitration on 11/5/95.” (GS-CAV Exhibit 368-a to 409 - See GS CAV 388)

26th February 1999:  Graham again writes to Tony Shaw:

“I refer to our correspondence dated 22 February 1999 and 24 February 1999, and ACA’s response dated 25 February 1999. The ACA correspondence states, at the end of its letter on page 2, ‘…Given that we brought you up to date regarding the matters raised in your letter, there seems little point in proceeding with a meeting as requested.’ …”

“Both AUSTEL and the ACA have been advised of/supplied with C.o.T. documentary evidence proving the existence of systemic difficulty, problems and faults with the Telstra network, including network and Telstra billing software negatively impacting on Telstra’s subscriber’s [sic]services and charges. …”

“The ACA’s current decision not to accept a briefing from the C.o.T.s on this matter and not investigate this complaint, requires the ACA to provide a written statement to C.o.T. Cases Australia.” (GS-CAV Exhibit 368-a to 409 - See GS CAV 389)

9th March 1999:  Alan Smith writes to John Pinnock, noting:-

“As you can see from this one example, my fax problems continued for some considerable time after the completion of my arbitration.” (GS-CAV Exhibit 368-a to 409 - See GS CAV 390)

10th March 1999:  Graham again tries to get Tony Shaw to investigate the valid COT complaints regarding Telstra’s defective network.  Alan Smith CAV Chronology file and supporting information confirm he also notified the TIO and the ACA, that the COT arbitration process failed to investigate any of the continuing phone problems and faults that continued past his arbitration. (GS-CAV Exhibit 368-a to 409 - See GS CAV 391)

11th March 1999:  AUSTEL’s Cliff Mathieson responds for Tony Shaw (the elusive ACA Chair):-

“The TIO’s relationship with AUSTEL was set out in section 339 of the Telecommunication Act 1991 and provided for the reference of complaints to the TIO. Therefore, with the establishment of the office of the TIO, AUSTEL referred all complaints within the jurisdiction of the TIO to that office in accordance with the clear intent of the legislation. Accordingly, the ACA rejects the basis for your request for an investigation.”

“As the C.o.T. complaints are still before the TIO, my suggestion is that you provide the TIO with all of  [sic] relevant evidentiary material which you state is in your possession to assist in the progress of the arbitration or its related processes.”
(GS-CAV Exhibit 368-a to 409 - See GS CAV 392-A)

15th March 1999:  Graham again writes to the elusive Tony Shaw:-

“I refer to the ACA’s letter dated 11 March 1999, in response to C.o.T. correspondence dated 22 February, 24 February, 26 February and 10 March 1998.

Records should contain the C.o.T.s objection to the AUSTEL’s appointment of the TIO as Administrator of the AUSTEL Fast Track Settlement Proposal process.

The C.o.T. Cases Australia’s complaints/assertions made to AUSTEL and the ACA that the TIO:-

is acting in a bias manner as Administrator, …

has, in written statements to Parliamentary members and others, made misleading and false statements to the determent of the individual C.o.T. members ” (GS-CAV Exhibit 368-a to 409 - See GS CAV 393)

15th March 1999:  Graham writes to Senator Richard Alston:-

“C.o.T. Cases Australia and its members have concerns and reasons to challenge the continuance of the TIO’s administration of the Telstra’s arbitrations. …”

“As Telecommunications Minister, please provide written advice of which Government Agency must investigate this serious complaint.”

“Senator Alston, will you, as Minister, support your advice within a written recommendation the Agency you nominate must investigate this matter?” (GS-CAV Exhibit 368-a to 409 - See GS CAV 394) 

29th March 1999:  Graham writes to the Hon Tony Staley, TIO Council Chair:

“Individual C.o.T. members, during the last five years, have drawn the respective Telecommunication Industry Ombudsman’s attention to matters of Telstra’s corporate conduct.”

“From C.o.T. members’ perspective, these matters have not been correctly addressed nor did individual members receive a written response from the respective Telecommunications Industry Ombudsman setting out how the TIO intended to address these matters.” (GS-CAV Exhibit 368-a to 409 - See GS CAV 395) 

12th April 1999:  William Hunt file notes record a telephone call from Alan.  Alan explains that Graham is hesitant to take the money offered by Telstra because he feels he is letting Alan down.  Alan is very concerned about Graham’s mental health and wants Graham to take the money. (GS-CAV Exhibit 368-a to 409 - See GS CAV 396)

14th April, 1999:  GS-CAV Exhibit 368-a to 409 - See GS CAV 397 shows a conversation between William Hunt and Anthony Honour and Graham Schorer.  Mr Honour suggests Graham lowers his baseline settlement amount by $350,000.  Graham does not agree.  Graham states, “I am not prepared to prostitute my claim any further,” should be seen in relation to his agreement to take part in the proposed Senate investigation into Telstra’s conduct during the COT arbitrations.  This primary investigation led to the formation of the Senate Working Party and this is why Graham wrote to Pauline Moore, Secretary of the Environment, Recreation, Communications and the Arts Legislation Committee, on 29th September 1997 to advise Ms Moore that his losses were between $4.3 and $12.6 million. (GS 328)

At this stage, Graham was burnt out, both physically and emotionally, and owed thousands and thousands of dollars to the various professionals who had helped in the now-crumbling arbitration.  This left him with no real alternative but to accept the $3.8 million Telstra offered.  The financial documentation in relation to the Deed of Release that Graham signed is attached to Graham’s CAV Relevant Information file as exhibit 16-a).

25th April 1999:  Alan Smith’s writes to the Hon. Tony Staley:-

“The enclosed FOI document, No. M33445, titled “Meeting to Discuss Fast Track Rules of Arbitration”, 22 March 1994, was forwarded to me last Monday, 19 April 1999. …”

“This meeting was clearly called to discuss the rules of the COT arbitrations and, since there were no representatives of COT present, the arbitrator should not have been there either. The situation is no different to a defendant (in this case, Telstra) in a court action meeting with the Judge to pass on instructions regarding how the matter before the court should be addressed. …”

“I would be grateful if you could explain to me why the TIO allowed the meeting to take place without any input from the members of COT.” (GS-CAV Exhibit 368-a to 409 - See GS CAV 398-A) 

26th May 1999:  Mr Pinnock writes to Alan:-

“I refer to numerous letters addressed to the Chairman of the TIO Council, the Hon Tony Staley, and which I have forwarded to him. 

The Chairman has asked me to advise you that Council will discuss the matters raised in your letters at its next meeting scheduled for 21 June 1999.” (AS CAV Exhibit 234 to 281 - See AS-CAV 264) 

Alan has never received a response to the outcome of that meeting.

2nd June 1999:  John Pinnock, writes to the Hon. Tony Staley, regarding the pending Brian Purton-Smith arbitration, and noting:-

“I am even more strongly of that view today. In part my position has hardened because of the many problems and deficiencies to the Arbitration process.” (AS CAV Exhibit 234 to 281 - See AS-CAV 266)

Mr Pinnock didn’t tell Mr Staley, however, that 36 hours before Graham Schorer and Alan Smith signed the Telstra-established Arbitration Agreement, two very important clauses were removed without Graham or Alan’s knowledge.  Then, also without their knowledge, the clauses were later put back into the agreement for the remaining 12 COT claimants to sign.  Mr Pinnock was, although, correct in his assessment that the process had “many problems and deficiencies”.

IMPORTANT COMMENTARY

Between 29th April and 12th July 1999 in the lead-up to Graham finally accepting less than a third of his estimated losses, numerous letters were exchanged between Graham, William Hunt, Telstra and Telstra’s solicitors (Freehill Hollingdale & Page). The arbitrator and the TIO-appointed Technical Resource Unit never assessed the validity of Graham’s claim – including the phone problems that continued to occur at his business.

If Telstra and the TIO had told Graham someone with access to Minter Ellison’s offices had secretly removed clauses 25 and 26 from the agreement, and altered clause 24 to favour Minter Ellison, Ferrier Hodgson and DMR Group, Graham would never have signed the Deed of Release: he would have taken the matter directly to the Supreme Court of Victoria.  Graham would also never have written to the Senators in the Senate Working Party (see exhibit 16-b, Graham’s Relevant Information file) thanking them for their assistance and a fair outcome, had he been aware of the deceptive conduct of so many.  Exhibit 16-b is a letter from Senator Carr, dated 7th July 1999 thanking Graham for his kind words.  Had the Senate been advised Graham and Alan signed the FTAP agreement believing it was the agreement their lawyers had viewed and accepted as the official agreement, when it was altered at the last minute, the Senate would have dealt with the COT issues differently.

The indisputable evidence of the alterations to clause 24 and the removal of clauses 25 and 26 from the Arbitration Agreement before Graham and Alan signed it, and the later reversal of these changes for the remaining 12 claimants, has been addressed elsewhere on this website.

13th July 1999: The Hon. Tony Staley writes to Alan Smith:-

“The Ombudsman has briefed the Council on various complaints which you have made concerning the Fast Track Arbitration Procedure (FTAP) and concerning the conduct of the Arbitrator, Special Counsel, the Resource Unit and the TIO in his role as Administrator of the COT Arbitrations. …”

“I also note that, to the extent that many of your complaints raise what may be considered legal issues, you have never exercised any rights to appeal the Award under the Victorian Commercial Arbitration Act (Vic).” (GS-CAV Exhibit 368-a to 409 - See GS CAV 399)

GS 400 is a letter dated 26th May 1999, from John Pinnock to Alan:

“I refer to numerous letters addressed to the Chairman of the TIO Council, The Hon Tony Staley, and which I have forwarded to him.”

“The Chairman has asked me to advise you that Council will discuss the matters raised in your letters at its next meeting scheduled for 21 June 1999.

The letters that were to be discussed by the Council on 21st June 1999 were dated 19th and 25th April, and are GS-CAV Exhibit 368-a to 409 - See GS CAV 398-A and GS CAV 398-B.  Although Alan asked, on a number of occasions, for a copy of the list of issues actually discussed by the Council at this meeting, particularly in relation to Alan’s matters, he has never received a copy of that list, nor an explanation of why the Council will not supply the list.

In Alan’s letter (GS-CAV Exhibit 368-a to 409 - See GS CAV 398-B), he notes:-

‘Both your own office, and the then TIO, Warwick Smith, were aware that the rules that we signed on 21 April 1994 had not been drawn up independently, as we were led to believe, but had, in fact, been drawn up by Telstra and their Legal Counsel, with only a few minor cosmetic alterations made later.”

COMMENT

Had the TIO Council correctly compared the final arbitration rules to Telstra’s proposed agreement and Minter Ellison’s draft agreement (from Telstra’s Proposed Rules) it would have seen the rules Dr Hughes’ office worked with, (just before Alan and Graham signed the final agreement) were different to the Telstra/Minter Ellison rules presented to Graham and Alan for signature.

It would be reasonable to assume that, once the TIO Council discovered the discrepancies between the clauses, the Council could have immediately initiated an enquiry into those discrepancies.

19th July 1999:  David Smith, of Corrs Chambers Westgarth, writes to Graham:-

“We have been provided with a copy of your letter to Mr Rohan, the Chairman of the Board of the TIO Ltd, dated 17 June 1999. …”

“We understand that you also telephoned HLB Mann Judd, the auditors of the TIO Ltd, on 15 June 1999 and said words to the effect that action was being commenced against the TIO. We understand that you used the word ‘fraud’ and made a statement to the effect that the TIO engaged in collusion with Telstra to disadvantage the C.o.T. …”

“We are instructed that the TIO Ltd, having made due internal enquiries, it unable to identify any basis on which civil or criminal claims might be brought against the TIO Ltd or its officers, employees or agents in connection with any matter relating to the arbitration procedures you and other of the C.o.T have been involved in with Telstra and in relation to which the TIO Ltd has played the role of administrator.” (GS-CAV Exhibit 368-a to 409 - See GS CAV 401)

However, GS-CAV Exhibit 368-a to 409 - See GS CAV 402, from Graham to Ms Mason of the TIO Board, shows the Major Fraud Group are satisfied there is sufficient evidence to investigate the TIO’s conduct and recommend a task force be assigned.

Towards the end of August 1999 through to 2001, Graham threw himself into trying to steer his business out of the problems it had suffered through the phone problems and 14 years of litigation with Telstra.  Much of this period was also taken up assisting with providing material to the Major Fraud Group, Graham had compiled lever-arch files of evidence supporting COT case members including Graham and Alan’s allegations their respective arbitrations had not been conducted transparently or independently.

The Alan Smith CAV Chronology file and supporting information show much of the damning evidence against Telstra and the arbitration process was never provided by the TIO during the police enquiry.

Graham and Alan believe that had all the material they now have, had been available to them during the Major Fraud Group investigation, this material would have supported the Major Fraud Group greatly in furthering their investigations.

21st September 1999:  Alan writes to John Pinnock concerning his continuing fax problems.

“Since the problems with my fax line were not addressed in my arbitration procedure I would be grateful if you would now ask Telstra the following questions:

• How can they charge me for a fax delivery to Mr Schorer’s office when it did not arrive there?
• Since, according to my Telstra account, I dialled the correct number when I sent this fax, and since it clearly did not go to that number, where did this fax go to?” (AS CAV Exhibit 234 to 281 - See AS-CAV 266)

It is important to note Alan provided Mr Pinnock with a copy of Graham’s fax journal and his Telstra account proving, yet again, the fax problems were just as bad in 1999, as they were prior to and during his arbitration

19th October 1999:  Mr Pinnock writes to Alan, noting:-

“I have reviewed the resources which the TIO has devoted to dealing with your extra ordinary [sic] number of complaints and letters over the past years and advise you that I do not propose to take any further action in relation to these matters.” (AS CAV Exhibit 234 to 281 - See AS-CAV 267)

Cathy and Margaret Van Run provide testaments

24th October, 1999:  AS 268 is an excerpt from a Statutory Declaration Cathy sent to David Hawker MP:

“Mr John Pinnock (Telecommunication Industry Ombudsman) has refused to address a number of Alan’s complaints.”

“Living with this type of no win situation has left both Alan and I exhausted and unsure if we can trust our business future.” (AS CAV Exhibit 234 to 281 - See AS 268)

Cathy and Alan continued to experience this type of problem until they sold their business in December 2001

28th October 1999:  the Hon. Tony Staley writes to Alan stating:

“The Ombudsman has repeatedly advised you in the past of your rights of appeal in relation to the Award of the Arbitrator, advice which you have not followed.” (AS CAV Exhibit 234 to 281 - See AS-CAV 269)

30th January 2000:  Dial-A-Secretary has problems faxing to Alan’s office:-

“On the 28th December, 1999 I was contacted by Alan Smith from Cape Bridgewater Holiday Camp re doing some computer work for him. … Alan rang and we organised for him to fax the work through. One page and a small portion of the next came through and then the line disconnected. Alan tried numerous times to get the fax through, but to no avail and he eventually had to make other arrangements for the work to be done nearer to him.”

“On 5th January 2000 Alan again contacted me regarding doing some work for him. He tried so many times over a period of about 3½ hours and finally the work came through.” (AS CAV Exhibit 234 to 281 - See AS-CAV 270)

Attached to AS CAV Exhibit 234 to 281 - See AS-CAV 270 is Alan’s fax account for this time showing Telstra charged for these non-transmitted calls

12th February 2000:  Alan writes to Ray Bell, author of the TF200 Report and asks him to consider his position:-

“Many years ago, in the Court of Tiflis of then Empire of Russia, the following legal precedent was set: 

‘…that no man can take advantage of his own wrong, and that it is a principal of Law that no action can be maintained on a judgement of a court either in this country or in any other, which has been obtained by fraud of the person seeking to enforce it. That the defence is good…’ ” (AS CAV Exhibit 234 to 281 - See AS-CAV 271)

9th May 2000:  Alan Smith writes to Ms Roslyn Kellcher (ACA acting Chair), clearly defining where Telstra broke the law during his arbitration, including detailing where the arbitrator and/or TIO treated his valid allegations with utter contempt. (AS CAV Exhibit 234 to 281 - See AS-CAV 274)

22nd May 2000:  Graham writes to Kathryn Taylor, (FOI, Legal Group, ACA) requesting an array of documents still not seen by Graham or Alan.  Graham notes:-

“It is not appropriate for the ACA to transfer all or part of this request to Telstra. Transfer of all or part of this request would prevent the discovery of notes and comments made by Austel and/or ACA Officers on the copies of documents distributed in draft form prior to sending or received correspondence distributed for comment and/or action.” (GS-CAV Exhibit 368-a to 409 - See GS CAV 404)

23rd May 2000:  John Pinnock writes to Alan Smith:-

“You have requested me, as Administrator of your Arbitration, to supply you with a copy of the first mentioned letter. I have caused an exhaustive search of your Arbitration files held by the TIO but have been unable to find the letter. It may be that it is on other equally voluminous files held by the TIO relating to the original AUSTEL Cot report. …”

“The construction you place on the letter is incorrect.” (GS-CAV Exhibit 368-a to 409 - See GS CAV 406-A)

3rd June 2000:  Alan Smith writes to Kathryn Taylor requesting FOI documents:-

“No 94/0269-06”

“This document, originally addressed to the Hon, Michael Lee’s office on 13/10/94, was recently supplied by the ACA to the members of COT. Both pages have information blacked out. …”

“At point 4 of this letter, the writer confirms that Steve Black and his senior executives had sought to influence and manipulated the Cot arbitrations in the following ways:

Remove or change information regarding Telstra’s liability
Diminish the level of compensation payable to COT customers
Dismiss breaches in relation to matters of customer privacy.”

“Clearly Telstra’s defence unit knowingly committed a number of unlawful acts in an attempt to ‘diminish the level of compensation payable to COT customers.’ …”

“All this information shows clearly that an injustice has taken place in the COT arbitrations. The ACA should now be seen to be cooperating in an effort to minimise any future suffering of the COT members. To this end, I now seek, from the ACA, a full and complete copy of the document of 13/10/94…” (GS-CAV Exhibit 368-a to 409 - See GS CAV 405)

Please note:    The ACA never provided a full and complete (un-blanked) copy of this document.

13th June 2000:  ACA’s Frank Nolan writes to Alan:-

“I refer to your letter of 9 May 2000, in which you raise yet again a number of concerns relative to your Fast Track Arbitration Procedure and subsequent events.

You raised similar issues in a letter to the [ACA] dated 26 January 2000. In his response to that letter dated 15 February 2000, Neill Whitehead indicated the ACA’s position with respect to such issues. 

This position has not changed, and I have nothing further to add save to emphasise that it is not of the ACA’s role to pursue these matters and that it does not intend doing so.” (AS CAV Exhibit 234 to 281 - See AS-CAV 273) 

Philippa Smith, Commonwealth Ombudsman wrote to Jim Holmes, Telstra’s Corporate Secretary (who was also a TIO Board Member at the time) on 20th January 1994:-

“I received complaints from three of the ‘COT Cases’, Mr Graham Schorer, Mr Alan Smith and Ms Ann Garms, concerning TELECOM’s handling of their applications under the Freedom of Information Act (FOI Act)… 

All three assert that they require the information to support their submissions to the imminent review in accordance with the Fast Track Settlement Proposal (FTSP) agreed between TELECOM and AUSTEL, and endorsed by the then relevant Minister.” (GS-CAV Exhibit 368-a to 409 - See GS CAV 408)

During the drafting of the COT Cases Report (April 1994), the COT claimants questioned AUSTEL’s chairman, Robin Davey, about this endorsement and were told that it would guarantee the Government’s commitment to have all COT claims properly assessed by the appointed assessor.  This endorsement meant the Government Regulator, now ACA had a responsibility to investigate Graham and Alan’s valid claims as to the previous regulator, AUSTEL were the facilitators of Graham and Alan’s Assessment and Arbitration Processes.   Frank Nolan’s statement in his letter of 13th June 2000 is therefore quite wrong, the ACA did have a duty (as the facilitators of the process) to pursue these matters.

Pandora’s Box?

10th October 2000:  Kathryn Taylor replies to Graham:-

“I refer to your numerous requests for information under the Freedom of Information Act 1982, in which you sought access to documents relating to correspondence between the ACA/Austel, the TIO, Telecom/Telstra, the arbitrators and the Minister for and/or Department of Communications

I have decided to release this information to you in full.” (GS-CAV Exhibit 368-a to 409 - See GS CAV 409)

29th October 2000:  Alan writes to the Hon. David Hawker’s secretary, Megan Campbell:-

“In support of these allegations of phone taping I have enclosed two documents. ..

In relation to problems with my mail, I enclose a copy of a letter recently sent to me from the Portland Post Office, and dated October 28, 2000. This letter confirms that overnight mail that I had posted had not arrived at its intended destination five days later.” (AS CAV Exhibit 234 to 281 - See AS-CAV 274)

19th December 2000:  Alan alerts Senators to what he uncovered from the TIO’s latest release of documents under the Privacy Act.  This letter discusses his concern regarding privacy issues, mail either lost completely or having been opened by persons unknown before delivery including phone interception issues, as well as Telstra FOI documents confirming they carried out surveillance of COT case premises and the TIO’s office reluctance to investigate their valid claims. (AS CAV Exhibit 234 to 281 - See AS-CAV 275)

Perhaps some of Alan’s arbitration claim documents, which do not appear on the Arbitrator’s List of Documents received, were lost during road transit as well as through Telstra’s fax-streaming process

11th January 2001:  Alan writes to David Hawker MP advising that:

“…Phil Corless [sic] and Lyn Chisholm (both from the same department as David Thomson) did subsequently visit my business early in 1998 and were both provided with evidence confirming that Telstra had, in fact, billed me incorrectly on the following three on my business phone lines:

1. Facsimile service 55 267 230
2. Free call 008/1800 service
3. Goldphone service 55 267 260” (AS CAV Exhibit 234 to 281 - See AS-CAV 276)

5th April 2001:  Ms Kirsten Musgrove writes to Graham

“I refer to your recent request for access to an anonymous letter headed “Received 13 October 1994”. …

“I attach a legible copy of the above letter as completion of your request”. (GS-CAV Exhibit 410-a to 447 - See GS-CAV 411)

The duplicate of this letter, originally sent by the ACA, was more heavily censored than the copy now released.  This shows Telstra was illegally altering and removing relevant information on documents requested by COT claimants.

Before ruling in Telstra’s favour, had Justice Gillard seen this document showing Telstra altering relevant information on documents defendants requested, during an arbitration process conducted under the same Supreme Court, he would have had to allow the Senate investigations to conclude, before forcing Graham to continue the arbitration.  The very issue Graham raised, in his legal argument with Justice Gillard, was Telstra’s defective supply of FOI documents.  With the 13th October 1994 letter and Alan Smith’s Statutory Declaration attesting to Rod Pollock altering information on documents requested by Alan, the same Rod Pollock named in the 13th October 1994 letter (GS-CAV Exhibit 410-a to 447 - See GS-CAV 411), Justice Gillard would have had to rule in Graham’s favour.

Had Graham been given this grace of time by Justice Gillard, he would have had longer to find someone to arbitrate his claim and would not have been under the same pressure he was when he finally accepted Telstra’s lifeline!

7th June 2001:  Ms Musgrove responds to Graham’s FOI requests, noting:-

“Due to the magnitude of the request it was decided to process each box as the documents are discovered.” ( GS-CAV Exhibit 410-a to 447 - See GS-CAV 412)

19th June 2001:  Graham writes to Ms Musgrove, noting:-

“On examining the documents and the enclosed Schedule, it appears that the ACA are using a processing method, of these individual and precise FOI requests, in a manner that makes it impossible for a third party to identify which FOI request including which part of that request, the document has been supplied in response to.” (GS-CAV Exhibit 410-a to 447 - See  GS-CAV 413-A)

12th July 2001:  Ronda Fienberg, a Melbourne-based secretary and Alan do a number of line tests on the incoming and outgoing fax line.  Both Cathy and Graham also experienced the same lock-up problems when doing similar line tests during this period.  This note from Ronda clarifies there were lock-up problems still apparent on Alan’s business service lines. (AS CAV Exhibit 234 to 281 - See AS-CAV 277)

Please note: this was the same type of lock-up fault Telstra acknowledged was a moisture-related problem the EXICOM TF200 experienced.  On 27th April 1994 Telstra removed an “alleged drunken TF200 from the camp premises” and installed a similar EXICOM TF200.  Could this second EXICOM have been part of Alan’s problem?

9th August 2001:  Alan Smith writes to the ACA Chair, Tony Shaw:

“I consider the ACA has failed to correctly respond to my written complaints, in particular, the reported conduct during Austel/TIO/Telstra/Fast Track Settlement Proposal/Fast Track Arbitration Procedure.

The ACA’s decision is ignoring the following facts:-

• Austel/ACA is the Federal Government appointed guardian of all Australian Telecommunication consumers.
• Austel purposely drafted the Fast Track Settlement Agreement. …
• Austel now the ACA, as the Telecommunications Regulator, under it legislative charter was an involved partly during the processing of the Fast Track Settlement Proposal, Fast Track Arbitration Procedure and Special Arbitration. …

Due to ACA’s refusal to fulfil its Regulatory Obligation to me, as a telecommunications consumer, with a legitimate complaint about the conduct of the TIO, the TIO Resource Unit, the appointed Arbitrator and Telstra, I am now seeking the intervention of others to have the ACA compelled to comply with its legislative charter.

As part of my decision, enclosed is an authorisation for Graham Schorer as spokesperson for CoT Cases Australia to act on my behalf.” ( GS-CAV Exhibit 410-a to 447 - See GS-CAV 413-B)

The phone issues continue:  2002

In January 1991, Telstra forwarded an open offer setting out Telstra’s agreement to additional Terms and Conditions offered to Golden Messenger, Graham’s business, as an inducement to connect to the Telstra ISDN network for the receipt of incoming calls.  Golden Messenger relied on that agreement – and still does.

As part of Telstra’s accelerated upgrade of the analogue PSTN network to a digital network, Telstra installed digital exchanges, manufactured by companies other than Ericsson, which had the capacity within the individual exchanges to provide both PSTN and ISDN services.

In September 1993, when Telstra were required to install the optic fibre ISDN link, Telstra attempted to connect a copper wire at Graham’s business.  This prompted Graham to contact Telstra regarding the undertakings and commitments they provided the company as part of their supply of the ISDN deal in 1991.

In 2002, Telstra informed Graham they were now ready to switch off his old system (which originally cost Graham in excess of $80,000 to install) and connect him to another service. Once again, Golden Messenger and Telstra locked horns in another costly court battle. As the wrongs and rights of this whole affair are voluminous, these matters are not discussed here.

By 2002/3, Graham and Alan had accumulated thousands of FOI, and other relevant documents, which were previously available (during their respective arbitration and appeal periods) but never supplied when requested.  The collected documents blatantly show some sinister dealings and prompted Graham to involve Allen Bowles to seriously investigate Alan and Graham’s arbitration matters.

During this period, Senator Len Harris (One Nation) pushed to have some of the COT issues reopened and settled via the intervention of Senator Richard Alston.  Phone calls to Alan Smith’s residence and meetings with Senator Harris nearly achieved this, as did Graham commissioning legal expert David Bailey, to draft the terms of reference of this review (see 23 September 2003).

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